Dorothy B., In re
| Citation | 227 Cal.Rptr. 472,182 Cal.App.3d 509 |
| Court | California Court of Appeals |
| Decision Date | 17 June 1986 |
| Parties | In re DOROTHY B., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. DOROTHY B., Defendant and Appellant. G002345. |
Howard C. Cohen, Appellate Defenders Inc., San Diego, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., John W. Carney, Supervising Deputy Atty. Gen., for plaintiff and respondent.
Dorothy B. was accused of the first degree murder of her infant son in a petition filed pursuant to Welfare and Institutions Code section 602. 2 The petition was sustained, and she was committed to the California Youth Authority. She argues: (1) There was insufficient independent evidence of a criminal agency to prove a corpus delicti and her incriminating extrajudicial statements were consequently inadmissible. (2) No corpus delicti of a first degree murder was independently proved, which also precluded introduction of her incriminating extrajudicial statements. (3) There was insufficient evidence of premeditation and deliberation. (4) The juvenile court failed to properly fix the degree of the murder and this court must amend the judgment to reflect a finding of murder in the second degree. And (5) the degree should be reduced from first to second in any event. We affirm.
I
When Dorothy B., an unmarried high school student, became pregnant, she wanted an abortion. She met opposition, however. Her mother told her abortion amounted to murder and pressured her not to go through with it. Her boyfriend Paul, the expectant father, also opposed an abortion. Her stepfather told her abortion was immoral and convinced her to give up the idea.
Dorothy then considered adoption, and consulted an adoption agency. However, her mother and Paul opposed that option as well.
Dorothy was depressed during the pregnancy. The baby was large, and a cesarean section was necessary. She suffered complications, and her depression continued after the birth. The child, James M., became sick and required surgery when he was approximately two months old.
Having seen the difficulties experienced by her own mother, Dorothy was very concerned about her ability to raise her son. She had no money and few material possessions. Moreover, she was physically and emotionally devastated. After the birth, she worked in a restaurant about 40 hours a week. Paul was also helping to support the baby, but he was injured in a motorcycle accident and became unable to work when the infant was three months old.
Dorothy told her friend Misty she had decided to put James up for adoption and again talked to Paul about it. At first he agreed, but then changed his mind. Her stepfather also discouraged adoption. Dorothy's mother indicated she would adopt the baby herself and abandon Dorothy forever.
Dorothy longed to return to the life of a "normal" 16-year-old. She did not want to be a parent and asked Paul what he would do if there were just the two of them. She resented the baby and regretted her loss of freedom. Apparently she attempted to regain a measure of freedom: Paul caught her in bed with another male after the baby was born.
Dorothy confided her feelings to Lisa, a fellow student in the School-Aged Mothers program. She also had two or three discussions with Lisa about ways to kill an infant. She said she would either smother him to simulate crib death or perhaps allow James to be adopted. Crib death had been discussed in their program, and another friend in the program had lost a child in that manner. Dorothy quizzed her as to how the coroner determined the cause was crib death. The friend said, in effect, nothing else could be found wrong with the baby.
Dorothy told Lisa she could suffocate James and the authorities would never be the wiser. She asked Lisa not to reveal their conversation. Lisa got the impression she was not joking.
Dorothy finally murdered James when he was four months old. One afternoon, Paul and Misty picked up Dorothy at work between 1:30 and 2:30. It had been a bad day, and she was tired. She wanted marijuana, but they were unable to get any. Paul and Misty took Dorothy home at approximately 3 p.m. Her younger sister, Dana, was babysitting, and James was napping on his grandmother's waterbed. He awoke about 3:30; Dorothy, Dana, and their mother all played with him. Dorothy was left alone with the baby between 3:45 and 4 p.m.
When Dorothy's mother and stepfather returned at approximately 5 p.m., she asked her stepfather to "move [the baby's] head from the pillow." The child, face down on the pillow, appeared to be sleeping. But the stepfather noticed his lips were purplish and puckered, he had no pulse, and he was not breathing. Attempts were made to revive him and the paramedics were summoned. They, too, attempted to resuscitate James but were unsuccessful. The baby was transported to the hospital and was pronounced dead.
Dorothy called Paul at about the time the death was discovered. He and Misty went to Dorothy's house, where she said, "James might be dead, I think he suffocated himself." Dorothy, Paul, and Misty went to the hospital, but returned to Dorothy's home after two hours or so. Paul and Dorothy went into her room, and she confessed to suffocating the baby with a pillow. She held the pillow to his face and watched as he struggled for his life. Once she lifted the pillow to let him catch his breath, but she put it back against his face and held it there until she believed he was dead.
Dorothy also confessed to Misty the following day and said she was either going to jail for the rest of her life or going to hell. She also said Paul knew but had vowed to keep the murder a secret.
Later the same day Misty returned to Dorothy's house with Dorothy's paycheck. The pastor for James' funeral service was there. Misty implored Dorothy to reveal what she had done. Dorothy asked to talk to the pastor. Later, in the pastor's presence, Dorothy told her mother she suffocated James with a pillow. Her mother said, "No, you didn't"; but Dorothy replied, "I did, and I want to die." Dorothy's mother took her to the police.
At the jurisdictional hearing, a forensic pathologist who had performed hundreds of autopsies on infants under the age of one testified, However, he indicated death by suffocation or smothering can be difficult to detect and may leave no signs at all. There are certain characteristic internal signs which existed in this case, however.
Smothering may be accompanied by imprints of the teeth or gums on the lips. This pathologist had supervised the first autopsy of James, and after embalming he conducted a second one. Embalming frequently reveals bruising and hemorrhages not previously visible, and during the second autopsy a bruise was discovered on James' inner lip. This finding, along with other internal conditions, was consistent with a person placing James' head in a pillow and holding it there until he suffocated.
In the physician's opinion, sudden infant death syndrome was probably not the cause of death. Nevertheless, he could not pinpoint the cause, nor could he say with certainty whether the death was by natural causes or at the hands of another.
II-IV *
V
At the close of the jurisdictional hearing, the juvenile court sustained the petition. It concluded the murder was premeditated and deliberate but failed to expressly state the murder was of the first degree. Over two months later the juvenile court attempted nunc pro tunc to correct its jurisdictional order. The prosecution concedes the attempted correction was ineffectual, and we do not address it further. However at Dorothy's disposition hearing the juvenile court again fixed the murder at first degree, and this procedure is permitted by rule 1355(f)(5) of the California Rules of Court. 4
Dorothy argues rule 1355(f)(5) is invalid. If true, we would be obligated to declare the murder supporting the jurisdictional finding to be second degree murder. However, we conclude rule 1355(f)(5) is valid and was properly employed here: (Oats v. Oats (1983) 148 Cal.App.3d 416, 420, 196 Cal.Rptr. 20.) Moreover, we also conclude the rule can be used in proper cases to exercise leniency. This case, however, did not compel an exercise of leniency in the disposition.
First, Dorothy argues section 702 "transcends" rule 1355(f)(5), by directing the juvenile court to "make and enter its findings and order, ... and ... then proceed to hear evidence on the question of the proper disposition to be made of the minor." (See also In re Gladys R. (1970) 1 Cal.3d 855, 859, 83 Cal.Rptr. 671, 464 P.2d 127.) We disagree; the statute and rule of court are not incompatible.
The declaration of the degree of murder was relevant to Dorothy's disposition, as we discuss, post. Here the crucial adjudicatory finding was made at the initial hearing: Dorothy was a person described in section 602 because she committed murder. Gladys R. discusses the need for a bifurcated procedure (jurisdiction followed by disposition) in light of section 702, but does not purport to dictate the precise content of each hearing.
In re Kenneth H. (1983) 33 Cal.3d 616, 189 Cal.Rptr. 867, 659 P.2d 1156 is pertinent. In remanding so the juvenile court could declare a burglary to be a felony or a misdemeanor ( § 702), our Supreme Court noted, "the crucial fact is that the court did not state at any of the hearings that it found the burglary to be a felony." (Id., at p. 620, 189...
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